You Are Hired!

Coolie – Part I
Dilemma of a Summer Intern from
XIMB
Defining Copyright
 In general, Copyright means the exclusive right provided under
the copyright act of the land, like Copyright Act of India, 1957, to
do or authorise the doing of acts such as
 Reproducing the work
 Issuing copies of the work to public
 Performing the work in public (such as musical or dramatic work)
 Communicating the work to the public
 Making translation of the work
 Making any adaptation of the work
 Making a cinematograph film or sound recording of the work
 Selling or Giving on commercial rent (such as a computer programme)
 Distinction of Work for “Hire” in U.S. and India

 Under the Copyright Act, 1976 of U.S., ―although the ownership

of copyright initially lies with the author(s) of work, in work for
―hire‖ scenario, i.e, the work is commissioned by the employer,
all the rights of copyright rests with the employer and the
employer will be treated as the author unless the parties i.e.,
employer and the employee, having agreed otherwise in a
written agreement.

 Works Made for Hire.—In the case of a work made for hire, the
employer or other person for whom the work was prepared is
considered the author for purposes of this title, and, unless the
parties have expressly agreed otherwise in a written instrument
signed by them, owns all of the rights comprised in the
copyright. – U.S. Copyright Act, 1976, 201 (b) (Copyright
Ownership and Transfer)
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 “Work For Hire” Clause
―_____________________________________ hereby certifies
that (the "Work") was specially commissioned by and is to be
considered a "work made for hire" under the Copyright Act of
______, as amended, for
____________________________________ ("Company"),
and that Company is entitled to the copyright thereto.

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 “Work for Hire” Clause

Without limiting the foregoing, for good and valuable

consideration, receipt of which is hereby acknowledged, the
undersigned hereby assigns and transfers to the Company, its
successors and assigns, absolutely and forever, all right, title, and
interest, throughout the world in and to the Work and each
element thereof, including but not limited to the copyright
therein, for the full term of such copyright, and any and all
renewals or extensions thereof, in each country of the world,
together with any and all present or future claims and causes of
action against third parties arising from or related to the Work
and the copyrights therein, and the right to use and retain the
proceeds relating to such claims and causes of action.‖

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Distinction of Work for “Hire” in U.S. and India
 However, under the Indian Copyright Act, 1957 (section 17), in
Contract of Service or Apprenticeship scenario, the employee will be the
author of the work and the employer will be the owner of the work if
it is proved that the work is created during the course of employment.

 The Indian law treats the employer as the first owner of copyright of
such work made for ―hire‖ unless there is a written agreement to the
contrary.

1. In the case of a work

2. made in the course of the author’s employment
3. under a contract of service or apprenticeship,
4. the employer shall,
5. in the absence of any agreement to the contrary,
6. be the first owner of the copyright therein –
- Section 17 (c), Indian Copyright Act, 1957.
 What Does the Distinction Imply?

 While the Indian Copyright Act clearly distinguishes between authorship and
ownership of work created by the employee during the course of
employment, the U.S. laws, by default, assigns the authorship and ownership
to the employer in work for ―hire‖ scenarios.

 Such a distinction provides ―moral rights‖ to the author such as rightful

attribution of such work wherever appropriate.

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Rights of Authors
 Paternity Right or Identification Right or Attribution Right
 The right to have the author’s name on the work created by the author

 Divulgation Right or Dissemination Right

 The right to disseminate the author’s work and includes the economic right to
sell the work for valuable consideration

 Integrity Right
 The right to maintain the purity and integrity of the work. Although subjective,
the author has the right to object to the treatment of the work which degrades
the work and thereby derogatory to the reputation of the author.

 Retraction Right
 The right to withdraw the work from publications if the publication infringes
author’s exclusive rights to reproduce and distribute the work or author feels
that due to passage of time and changed opinion it is advisable to withdraw the
work.
Moral Rights of Authors
 Except the Divulgation or Dissemination Right, which are
influenced by economic or commercial considerations, all the
other rights i.e., Paternity Right, Integrity Right, and Retraction
Right could be rightfully termed as ―Moral Rights of Authors.‖
Protection of Moral Rights of Authors.
 The moral rights of authors are protected through Section 57 of the
Indian Copyright Act, 2012 irrespective of the fact that whether the
author has assigned the ―ownership rights‖ to others or not.

 Section 57 of Indian Copyright Act, 2012. Author’s special rights.

1) Independently of the author's copyright and even after the
assignment either wholly or partially of the said copyright, the author of
a work shall have the right-

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation,

modification or other act in relation to the said work if such distortion,
mutilation, modification or other act would be prejudicial to his honour or
reputation:

(Refer to the ―3 idiots!‖ controversy involving Vinod Chopra Films and Chetan
Bhagat)
Should right to assert authorship in a work, include a
right to object to distortion, mutilation or modification in
a work?
Good name in man and woman, dear my Lord
Is the immediate jewel of their souls;
Who steals my purse, steals trash;
Its something nothing;
T'was mine, t'is, and has been slave to thousands;
But he that filches from me my good name, Robs me of that
which not enriches him And makes me poor indeed.
- (Shakespear's Othello, Act-II, Scene III, pp.167)

Quoted By Justice Pradeep Nandrajog in (Amar Nath Sehgal Vs Union of

India, 2005)
Disclaimer for Protection of Moral Rights
 However, failure to display a work or to display it to the
satisfaction of the author shall not be deemed to be an
infringement of the rights conferred by this section.
Assignment of Copyright
 The owner of the copyright in an existing work or the prospective owner of
the copyright in a future work may assign to any person the copyright either
wholly or partially and either generally or subject to limitations and either for
the whole term of the copyright or any part thereof

 Where the assignee of a copyright becomes entitled to any right comprised in

the copyright, the assignee as respects the rights so assigned, and the assignor as
respects the rights not assigned, shall be treated for the purposes of this Act as
the owner of copyright and the provisions of this Act shall have effect
accordingly.
 Section 18 of Indian Copyright Act, 1957 & Indian Copyright (Amendment)Act, 1994

 No assignment of the copyright in any work shall be valid unless it is in

writing signed by the assignor or by his duly authorised agent (Section 19 of
Indian Copyright Act, 1957 & Indian Copyright (Amendment)Act, 1994).

 (Refer to the Upaid Vs Satyam story; Rosenstein - A South African Story; Lett –
A Canadian Story)
About Fair Use
 Fair Use is a balancing act to protect the rights of the author i.e.,
the creative and the rights of the user.

 Because Copyright is not an absolute right granted to the author

but an exclusive right with limited exceptions.

 Fair Use as a principle promotes the limited use of the

copyrighted material by the users without obtaining permission
from the copyright holder

 According to Article 13 of TRIPS, Exceptions to Copyright

 Must be ―Special‖
 Must not be in conflict with normal exploitation
 Must not unreasonably prejudice the interests of the copyright holder
 Application of Fair Use – The Four Factor Test
1. Purpose and Character
a) Private Study, Teaching, Research, Library Archiving, Criticism, Commentary,
News Reporting, Search Engines; etc.,

b) The onus of Justification for fair use is with the user who has to demonstrate or
prove as how the use of the copyrighted material advances the knowledge and
not for commercial use i.e. Transformative Vs Derivative (BoP on the User)

2. Nature of Copyrighted Work

a) Use of Unpublished Work or Manuscript may not be construed as fair use as
Copyright holders have the right to decide on the platform and circumstances for
the first publication of such work

b) There is greater protection available for creative works such as art, literary,
music, poetry, etc., than non-fiction.
 Application of Fair Use – The Four Factor Test
3. Extent and Substantiality of the Use
a) There must be substantial reproduction of the copyrighted work

b) Should exclude ideas, subject matter, themes, plots or historical or

legendary facts

c) Should be confined only to the form, manner, and arrangement and

expression of the idea by the author of the copyrighted work
Original Vs Borrowed
―In truth, in literature, in science and in art, there are,
and can be, few, if any, things, which in an abstract
sense, are strictly new and original throughout.
Every book in literature, science and art, borrows,
and must necessarily borrow, and use much which
was well known and used before.‖
- Justice Story in the US Case of Emerson Vs Davis, 1845

 ―What did you bring with you, for you to lose it?
What did you create, for it to be wasted or destroyed?
Whatever you took, it was taken from here.
Whatever you gave, it was given from here.
Whatever is yours today, will belong to someone else
tomorrow.” - Bhagavad Gita
Application of Fair Use – The Four Factor Test

4. Effect of the use on potential market or value of the original

work (BoP on the copyright holder)
a) Weighing on the probability that the use of the copyrighted work would
negatively affect the author’s ability to exploit the potential market
for the work

b) Weighing on the probability as whether the use of the copyrighted work

acts a direct market substitute for the original work, especially
when the licensing of the original work is available for commercial
purposes
Application of Fair Dealing in India
 Section 52 of Indian Copyright Act, 1957 deals with ―Certain acts not to
be infringement of copyright.‖ It includes many purposes such as

(a) a fair dealing with a literary, dramatic, musical or artistic work [not
being a computer programme] for the purposes of-
(i) private use, including research;
(ii) criticism or review, whether of that work or of any other work;

(b) a fair dealing with a literary, dramatic, musical or artistic work for the
purpose of reporting current events-
(i) in a newspaper, magazine or similar periodical, or
(ii) in a cinematograph film or by means of photographs.

(h) the reproduction of a literary, dramatic, musical or artistic work-

(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;